Constitutional Convention

A battle over efforts to call a constitutional convention is currently taking place throughout the country. Occurring below the national radar screen, the fight has enormous consequences.

Proponents are attempting to pass resolutions in 34 state legislatures that call for a constitutional convention to adopt a federal balanced budget constitutional amendment.

Most experts agree, however, that once a constitutional convention is called, the actions of the convention could not be limited in advance to any particular issue and the delegates would be able to consider any other constitutional amendments they wish to adopt. (Amendments adopted by the convention would then go to the states for ratification.)

As the late Supreme Court Chief Justice Warren Burger explained, “[T]here is no way to effectively limit or muzzle the actions of a constitutional convention. The convention could make its own rules and set its own agenda.”

This means that calling a constitutional convention would open the door to a runaway convention in which all of the constitutional rights provided to the American people would be up for grabs. This includes constitutional protections for civil rights and liberties, freedom of speech and religion and voting and privacy rights, among others.

As state legislative sessions begin, right-wing groups are ramping up a nationwide campaign to convene a constitutional convention to propose amendments that would strip the federal government of much of its power to invest in national priorities and protect civil rights.

As respected legal voices in the states, ACS members can help defeat this campaign by educating policymakers and the public (through op-eds, testimony and the like) about its radical goals and misleading claims.

Here’s the background. Under Article V of the Constitution, Congress must call a convention to propose constitutional amendments if two-thirds of the states formally request one. In the late 1970s and early 1980s, many states passed resolutions calling for a convention to propose a federal balanced budget amendment. At one point, 32 states had passed resolutions along these lines, close to the 34 states required. But over the next 25 years, no more states passed resolutions and half of the states that had passed resolutions formally rescinded them, fearing that a convention would throw open the Constitution to harmful changes.

The tide turned in 2010 as the American Legislative Exchange Council (ALEC) and its allies began pushing anew for state resolutions. Since then, eight states have adopted new resolutions calling for a convention to propose a balanced budget amendment. Some proponents claim that 24 states have “live” applications, including those passed in the late ‘70s and early ‘80s but never rescinded. They’ve targeted another 15 states for the coming year.

by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law. This post is part of our 2013 Constitution Day symposium.

What are we celebrating on September 17, the 226th anniversary of the completion of the Constitutional Convention in Philadelphia in 1787? To be sure, we are celebrating a document that has facilitated democratic rule for over 200 years. We are celebrating a document that has allowed society, throughout American history, to debate many of its most controversial issues in legal terms. In other words, we are celebrating not just the document itself, but how it has been interpreted and implemented over the course of American history.

For several decades, conservatives have espoused originalism as a theory of constitutional interpretation. This is the view that the meaning of a constitutional provision is limited to its original intent. Originalism is the idea that the meaning of a constitutional provision is fixed when it is adopted and can change only by constitutional interpretation. In other words, originalists give no consideration to how the Constitution has been interpreted and implemented over the course of American history. In this way, they ignore what we really are celebrating about the Constitution.

Originalism does not reflect what the Supreme Court ever has done in interpreting the Constitution. The Court always has looked at the text and the underlying purpose and the original intent and traditions and precedents and contemporary social needs. Even the justices who most advocate originalism abandon it when it does not serve their purposes. Justices Scalia and Thomas, for example, are adamantly opposed to affirmative action and simply choose to ignore that the original intent of the equal protection clause was to allow race-conscious programs to benefit minorities. The Congress that ratified the Fourteenth Amendment, however, adopted many such efforts.

There is an obvious reason why originalism never has – and hopefully never will – be followed by a majority of the Court: it makes no sense to be governed in the 21st century by the intent of those in 1787 (or 1791 when the Bill of Rights was adopted or 1868 when the Fourteenth Amendment was ratified). Simple examples illustrate this. The Constitution uses the pronoun “he” to refer to the President and Vice President and the original understanding is that they would be men. An originalist would have to say that it is unconstitutional to elect a woman to these offices until the Constitution is amended.

The same Congress that ratified the Fourteenth Amendment also voted to segregate the District of Columbia public schools. Under Justice Scalia’s theory of originalism, Brown v. Board of Educationwas wrongly decided.

The signing of the Constitution on Sept. 17, 1787 would end up spurring one of the most "extraordinarily divisive and bitter campaigns in American history," Walter Dellinger told a nationwide audience at a Constitution Day event hosted by ConSource.

Speaking at the Madison building in Washington, D.C., Dellinger, the former Acting Solicitor General during the Clinton administration, and a member of the ACS Board of Advisors, delved into the history of the Constitutional Convention in Philadelphia.

"If there was a unifying theme to the Convention, it was a quest to find remedies to the threat of tyranny by legislative majorities," Dellinger said.

Dellinger, who is a frequent participant at ACS events, noted that while the delegates to the Convention who supported an overreaching national government ultimately won the debate, they did so barely. And, he said, the "the debate kept going" and reverberations from that debate are still felt today.

The Constitutional Convention of 1787 produced a Constitution that also included an "awful compromise," Dellinger noted. That compromise resulted in northern states becoming complicit in the enforcement of slavery, he said.

Paul Clement, the solicitor general during a portion of the George W. Bush administration, followed Dellinger and touched upon another debate that is also ongoing - how to interpret the Constitution. "Famously the Constitution did not directly address the notion of judicial review," Clement said. "It doesn't answer the question, how should one go about interpreting the Constitution. There remains a lively debate on the Supreme Court about how best to interpret the Constitution."

Video of the entire event, which includes a question and answer session, is available here or by clicking on the picture of Dellinger.

To mark the nation's founding document, lawyers and law students across the nation volunteered time at area public schools, like this one in Lima, Ohio, to share their knowledge about the Constitution and its relevance in all our lives. The volunteers are coordinated by the ACS Program, Constitution in the Classroom. See here for about the ACS program.